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1962 (3) TMI 7 - SC - Income Taxwhether an appeal lay against the order of Mehrotra J. rejecting the application for review filed by the appellants to a division bench of the High Court? Held that - The application was filed only under section 11 of the Act and no attempt was made either before Mehrotra J. or before the division bench of the High Court to ask for an amendment or to sustain the petition under Order XLVII of the Code of Civil Procedure ; nor did the appellants raise this plea in the petition filed for special leave or even in the statement of case as originally filed by them. After the case was argued for sometime on an observation casually made by the court time was taken and for the first time this plea was taken in the additional statement of case filed by the appellants. This is therefore a highly belated attempt to convert the application filed on one basis into that on another. Further the plea if allowed is not so innocuous or smooth-sailing as it appears to be but is brimming with many controversial questions. Thus we are not justified to allow the appellants to convert their petition to one made under Order XLVII of the Code of Civil Procedure at this very late stage in view of the foregoing reasons. Appeal dismissed.
Issues Involved:
1. Whether an appeal lies against the order of Mehrotra J. rejecting the application for review. 2. Whether Section 11 of the U.P. Act XIV of 1956 allows for the review of an order made by the High Court under Article 226 of the Constitution. 3. Whether the application for review can be treated as one filed under Order XLVII of the Code of Civil Procedure. Detailed Analysis: 1. Appeal Against the Order of Mehrotra J.: The first issue was whether an appeal lies against the order of Mehrotra J. rejecting the application for review filed by the appellants. Chapter VIII, Rule 5 of the Rules of Court provides for an appeal against an order of a single judge if that order amounts to a "judgment." The scope of the term "judgment" was discussed, citing various High Court decisions. The court concluded that the order of Mehrotra J. was indeed a "judgment" within the meaning of the relevant rules and clauses, as it determined the rights of the parties by denying the appellants' statutory right to have the High Court's order reviewed. Consequently, the division bench of the High Court erred in holding that no appeal lay against the order of Mehrotra J. 2. Section 11 of U.P. Act XIV of 1956 and Review Under Article 226: The second issue was whether Section 11 of the U.P. Act XIV of 1956 allows for the review of an order made by the High Court under Article 226 of the Constitution. Section 11 of the Act is in two parts: the first part confers a right on a party to apply for a review of proceedings, and the second part imposes a statutory injunction on the court to review the proceedings accordingly. The court held that a petition under Article 226 of the Constitution is not a proceeding under the principal Act but a proceeding under the Constitution. It was determined that the High Court exercises original jurisdiction under Article 226, which is distinct from the jurisdiction exercised under the principal Act. Therefore, Section 11 does not apply to orders made by the High Court under Article 226. Additionally, the court noted that interpreting Section 11 to apply to such orders would conflict with Article 226 of the Constitution, which confers discretionary power on the High Court. 3. Application for Review Under Order XLVII of the Code of Civil Procedure: The third issue was whether the application for review could be treated as one filed under Order XLVII of the Code of Civil Procedure. The court noted several objections to allowing the appellants to convert their application at this late stage. The application was initially filed under Section 11 of the Act, and no attempt was made to amend it or sustain it under Order XLVII before the lower courts or even in the special leave petition. The court highlighted that allowing this conversion would raise numerous controversial questions, including whether the application was within time, whether the delay could be excused, and whether an order under Article 226 could be reviewed under Order XLVII. Given these reasons, the court decided not to permit the appellants to convert their petition. Conclusion: The court held that the order of the High Court was correct and dismissed the appeal with costs. The judgment emphasized that Section 11 of the U.P. Act XIV of 1956 does not apply to orders made by the High Court under Article 226 of the Constitution, and the application for review could not be converted to one under Order XLVII of the Code of Civil Procedure at this late stage.
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